Corrupting the administration of criminal justice

Once again, the quality of the legal advice being dispensed at the presidency has come under scrutiny. Following the recent decision of the Federal High Court in Abuja, striking out a legal challenge to Executive Order 06, the Presidency purported to commence enforcement of the Executive Order with a statement that began as follows –

“Following the instant judicial affirmation of the constitutionality and legality of the Executive Order 6 (E06), President Muhammadu Buhari has mandated the Attorney-General of the Federation and the Minister of Justice to implement the order in full force.” The statement announced that at least 50 ‘high profile persons’ have been restricted from leaving the country pending the determination of their cases in court and that assets under investigation worth N50m or more are to be preserved against being sold or otherwise dissipated.

The statement is problematic because it completely ignores the thrust of the Federal High Court’s judgement. While the court affirmed that the President can indeed issue Executive Orders, the key portions of her judgement were the limits to this power. The court’s ruling was the Executive Orders were fine as long as they did not encroach into the principle of the separation of powers. In other words, an Executive Order can not trump an Act of the National Assembly or give the Presidency the power to make judicial orders.

The court further held that the interim forfeiture of assets could only be enforced in line with existing laws, that Executive Orders were subject to the Rule of Law and that any exercise of the Attorney-General of any purported powers under the Executive Order were subject to section 174 of the constitution (which sets out the Attorney-General’s powers and states that he must have regard to the public interest, interest of justice and the need to prevent abuse of legal process).

The crux of the matter is not whether or not corruption is bad and needs to be stamped out. Rather, it is what new legitimate powers do Executive Orders confer? This column has previously looked at their validity and the recent ruling of the Federal High Court appears to affirm our conclusion at the time that they do not and cannot grant additional powers or amend existing law. Indeed, section 1 of E06 begins with the words “without prejudice to any laws or existing suits or any other rights arising out of or in respect thereof…”

The further questions are therefore, in what way is the Federal Government empowered to restrict Nigerians from travelling under existing law? In what way is the Federal Government empowered to curb property rights under existing law? Under existing law, does the mere existence of criminal proceedings alleging corruption deprive the accused of any of his/her rights?

The legal principles here are fairly elementary. The abridgement of personal rights can only be done in accordance with law or further to an order of court. No one can be deprived of rights granted under the constitution except in the way that the constitution says the rights may be curbed. So, for example, section 41 of the constitution provides that Nigerians can move freely in and out of the country but legislation imposing restrictions on movement are fine if a person is reasonably suspected to have committed a criminal offence. Executive orders cannot trump existing law – the Federal High Court has stated this. If travel restrictions are to be imposed and no enabling law is cited, the ban is clearly unconstitutional.

Similarly, regarding property rights and the forfeiture of property, section 44 provides that the right not to have property taken over compulsorily does not affect the validity of a law for the imposition of penalties or forfeiture for breach of any law, or relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry. In other words, it can only be done in accordance with existing law.

All these again beg the question, short of indicating a policy direction, what is the point of Executive Orders under Nigerian law? At best, they are innocuous exercises in legislative toothlessness by the government but at the worst, they show the government leaning towards autocracy and impunity. The head of the current government has history here that inevitably comes to mind.

As a people, we must be careful that we do not support executive overreach merely because it goes after people we perceive to be bad. If the overreach is allowed to stand, if the Executive is allowed to create illegal shortcuts against “bad” people, there is nothing stopping the shortcuts eventually being used against “good” people either.

This is the thrust of the jurisprudence underpinning truly democratic societies. Government cannot be allowed to wield discretionary powers in the administration of justice because this will corrupt the administration of justice. And it should be elementary that a corrupt criminal justice system cannot root out the corruption in society.